South African History Online

Opening address to the Law Society of the Transvaal delivered by the President of the ANC, Nelson Mandela

29 October 1993

I was pleased to receive your invitation to open the general meeting of my
chosen profession. Mind you, this was at least the third time the Law Society
thought of me. The two previous invitations were delivered by the sheriff. I was
asked to show cause why I should not be struck off the roll of attorneys.

My eminent counsel in the first application, Walter Pollack QC and Blen
Franklin persuaded Judge Ramsbottom that my conviction in the early 1950's for
being the volunteer-in-chief in the Defiance Campaign did not make me guilty of
an offence involving moral turpitude.

I decided to ask the commanding officer on Robben Island to arrange for me to
appear personally to oppose the second application brought soon after my
conviction at the Rivonia trial of 1964. The thought of my being brought to
Pretoria and being seen in open court must have convinced those who

initiated the application to withdraw it. Here I am with my name still on the
roll even though I have not yet got around to apply for a fidelity certificate
to go into competition with you.

Some of our colleagues both at the Bar like Bram Fischer and attorney Ntobeko
Maqubela were not as fortunate. They were hurriedly struck off.

I have previously called for the reinstatement of all those who, like me,
broke the law in order to put an end to oppression in our country. I repeat that
call.

It has now become fashionable to be in favour of democracy and against
apartheid. I have heard it being said it will soon be difficult to find anyone
who will admit to having been in favour of apartheid.

But at the time of the worst excesses of apartheid, judges and lawyers on the
whole remained silent. Judges magistrates and prosecutors enforced apartheid
laws without protest. Unwarranted sentences were called for and imposed for
contravention of statutes passed to uphold apartheid.

School boys like Dikgang Moseneke were sent to prison for many years for what
they were discussing in their classrooms.

We should not be surprised that the legal profession, the prosecution
services and the judiciary are seen by the majority of the population as
institutions which upheld oppression rather justice. I do not however wish to
dwell on the past. The present and the future are more important for all of us
who embarked upon the task to create a just society in South Africa.

Let us look around us. Is this gathering of lawyers representative of the
people of South Africa? What of the membership of the society? What of the
composition of it's council? Like the judiciary, the Bar and most other
important institutions in our country, the attorney's profession is dominated by
white males. And most dominant of all appear to be the small number of large
firms.

In their submission to the Milne Commission of Enquiry the Law Societies
speak of 'the crisis of legitimacy facing the South African legal system today".

It States:

The crisis is evidenced by the fact that in South Africa, which has a
population of some 39 million people (of which some 33,500,000 are generically
black), there are only 8,368 practising attorneys and 1,253 practising
advocates. South Africa's total number of practising lawyers (9,621) yields a
ratio of one qualified and legally trained person to every 4,053 members of
the South African population. This contrasts adversely with for instance
another African country such as Egypt. Of the total number of attorneys, only
1,178 are black, while of the total number of advocates, only 95 are black. Of
these Black advocates, only five are senior counsel. While it is quite clear
that the number of black attorneys bears no correlation to the percentage of
the population which is black, this is even more true of black members of the
Bar.

The law Societies are not alone in their concern about the administration of
justice. The judicial colloquium held in Bloemfontein some weeks ago concerned
itself with the composition of the judiciary. The Chief Justice, judges of the
Court of the Appeal and others from the Provincial divisions, senior jurists
from the Commonwealth, the USA and South Africa participated. An important
statement was made which in part reads as follows:

"The participants believe that the provision of equal justice requires a
competent and independent judiciary trained in the discipline of the law and
sensitive to the needs and aspiration of all people. They stressed their
conviction that it is fundamental for a country's judiciary to enjoy the broad
confidence of the people that it serves; to the extent possible, a judiciary
should be broad-based and therefore not appear (rightly or wrongly) beholden
to the interest of any particular section of society. They saw this as being
of special relevance in cases involving complaints of discrimination in their
own countries and so of being of the highest importance in the context of the
judiciary which will interpret and enforce a new South African constitution
with a justiciable Bill of Rights".

No one interested in the administration of justice should have serious
reservations about the correctness of this statement. The debate ought to be, as
to how soon and in what manner, can blacks and women who have historically been
excluded from effective participation in the legal profession as a whole and
more particularly from judicial office, be addressed. Judge of Appeal Leonora
van der Heever and Judge Ismail Mohamed, the sole representatives of the two
groups, focus on the seriousness of the problem.

That many blacks would not take an appointment from a government which they
considered illegitimate is hardly the root cause of the problem. As we are about
to change over from the politics of protest to participation in the legislative,
executive, judicial and administrative functions after the first democratic
election in our country, no one should want to stand aside.

The restructuring of the judiciary must and will take place. The legal
profession's participation and attitudes will play an important role in the
process of restructuring. It may well be that some of the well-entrenched views
and practices have to change.

The vast majority of the people of South Africa cannot be asked to wait
indefinitely for fundamental changes in the judiciary which is not perceived to
be sensitive to the needs and aspirations of all the people of South Africa, and
which does not enjoy the broad confidence of all South Africans.

The appointment of judges from the ranks of senior counsel may have its
merits. The historical exclusion of blacks and women from work which would have
allowed them to reach that status, cannot be allowed to continue the
entrenchment of a white male judiciary. Senior attorneys and academics will have
to be considered for judicial office and included on the Constitutional Court.

No longer will our courts be called upon to interpret and apply apartheid
statutes and security laws that kept them so busy for over fifty years. In
addition to applying statute law of universal application and the common law
they will have a great responsibility cast upon them. There will be a
Constitution finally drawn up by the elected representatives of the people of
South Africa. There will be a justiciable Bill of Rights which will guarantee
the human rights of which the vast majority was deprived for so many years.

The Constitution and the Bill of Rights will have to be interpreted by the
courts. They will have to give substance to their content. They will have the
right to pronounce upon the validity of the legislation passed by the various
levels of government and decide whether the challenges to its validity are
justified. The decisions of the courts will inevitably relate to sensitive
social and political values. If these decisions are not made by a judiciary
which had the confidence of the vast majority of South Africa, problems are
likely to arise.

There is consensus that there will be a Constitutional Court. we share the
view of Prof Tony Honore that its members. or at least most of them, should not
have links with the past because as he says:

"Constitutional adjudication is unlike ordinary adjudication in that it is
strongly political, not in the party sense, but in that it requires judges who
are sensitive to the ways in which the values enshrined in the Constitution
can be translated into concrete rights and duties and in which a balance can
be maintained between different organs of government. It is equally important
that the court of last resort should be of a representative character which
commands confidence."

Accused, Plaintiffs and defendant will complain that their fundamental rights
have been violated by procedural irregularities in their trial or by unfair
provisions on contracts entered into by unequals in bargaining power and by
officials who have abused power. not only judges of the constitutional court are
likely to be called upon to interpret the Constitution and the Bill of Rights.

Will our judges who in the main have been brought up by what has been
described as 'the austerity of tabulated legalism' rise to the task of adopting
broad rules of interpretation to give effect to the overall intention of the
Constitution and the Bill of Rights?

The manner in which judges to the Constitutional Court and other courts are
to be appointed is a matter which is presently being debated. The decision will
finally have to be made by elected representatives that will enact South
Africa's Constitution. Whatever may be finally decided, one would expect that
the elected representatives of the people, the Chief Justice, the organised
legal profession and the academic lawyers must have a say. Changes in the manner
of the appointment of the judiciary are necessary. It would be unacceptable that
as we are coming out of a long history of racial discrimination and
authoritarian rule to expect that no fundamental changes in that regard should
come about. We need a representative judiciary because as Prof Jeremy Webber of
Mcgill University says:

"Justice never utters itself, it depends upon women and men for its
formulation. That being the case, we must have more of the diversity of our
society represented on the bench, so that the inescapable residue of
additional bias in adjudication reflects something of the range of attitudes
present in our society."

We know that most people appear, whether as plaintiffs or defendants,
complainants or accused in the magistrates' courts. Has the position really
changed materially from what it was in 1962 when I said:

"What is it that in the courtroom I face a white magistrate, am confronted
by a white prosecutor and escorted into the dock by a white orderly? Can
anyone honestly and seriously suggest that in this atmosphere the scales of
justice are evenly balanced?"

Yes, I would concede that the orderly would probably be Black.

The qualifications and training of magistrates will have to change. It is
correct that they should almost invariably get onto the bench after prosecuting
for a number of years? Should not our graduates and practising lawyers be
appointed after some training? Would judicial experience gained in the lower
courts not qualify them to become judges in the higher courts?

The majority of the people in our land because they have been excluded from
the structures administering justice cry out for participation in the future.
How is that call going to be answered? Are we going to have juries or a more
widely used system of lay assessors? What about our rural areas and the
Customary Courts?

Those who resist change say that appointments should be made on merit.
Usually they do not define merit nor do they pose the question as to whether
those who are already on the bench were appointed on merit. No doubt some were
appointed on merit, others were appointed because they were white male
Afrikaners and beneficiaries of one of the most successful affirmative action
programmes in favour of Afrikaners since 1948. They benefitted by the favoured
treatment of having almost all the government's work and the work brought by the
industrial, commercial and financial advancement of the Afrikaners.

We are not suggesting that merit is irrelevant and that persons should be
appointed to the bench on the basis of their race and gender. Certain minimum
technical skills are essential for appointment to the bench. Women and men of
integrity, experience, able to understand people and legal principle, deal with
arguments advanced to them and write judgement s that can be understood, should
be sought for appointment.

It may well be necessary to introduce training schemes not only for
prospective judges, but even for some already on the bench whose horizons may
have to be broadened in order that they may do justice for all in the country.
If judges in Canada and elsewhere feel that they need it why should it not
happen here?

The organised legal profession will have to give serious attention as to what
steps it will take to remedy the imbalance particularly in relation to the
opportunities of black people to join its ranks. We are not unmindful of some
attempts being made to facilitate their entry into the profession.

But is there enough being done to remove the impediments?

Is Latin really necessary when hardly any schools are teaching it?

Are candidate attorneys chosen with a view to correcting the imbalance in the
profession?

Is the profession happy that the number of conveyancers and notaries public
who are not white can be counted on the finger's of one's hands?

Are attorneys spreading their work among young members of the Bar to give
those deprived, work which will broaden their experience and enable them to
become leaders and thereafter be appointed to the bench?

Are the State Attorneys still distributing their work to the small groups
traditionally favoured by them?

Is there going to be fusion of the Bar and the side Bar? What rights of
audience will be accorded to attorneys in the superior courts?

We are not unmindful of the profession's recent attempts to be of some
assistance in relation to legal education and the grant of scholarships,
particularly to black students who would otherwise not be able to study law.

Access to legal service is a basic necessity. If people are not able to
enforce their rights, those rights become meaningless. If the wealthy have
privileged access to justice, that brings the whole legal system into disrepute,
and rightly so.

All lawyers should therefore encourage and support public and private
institutions which promote greater access to justice. Of course, the government
has a particular responsibility in this regard. However, we have to recognise
that there will be many pressing calls on the funds of a government committed to
social reconstruction. We need to muster all the resources we can, including
available government resources, to make the legal system accessible to all.

In this regard, is it not time to look again at how the monies in the
Fidelity Funds are used' and who has the responsibility for making decisions in
this regard? The money in the Fund, of course, comes from interest which is
earned on monies in attorney's trust accounts, in other words, on monies which
belong to clients. It does not belong to the legal profession any more than it
belongs to the individual attorneys who held the original capital in their trust
accounts.

It would surely be very appropriate to use some of this money to promote
access to justice. And is there not a case to be made for some measure of public
accountability in the spending of what is really public money?

All these matters will have to be addressed. I would urge the legal
profession not to try to do it unilaterally. Your council for obvious reasons is
not representative of the population. Until it becomes representative, I believe
that you should consider having wide consultations with all who will be affected
by your decisions before embarking on any restructuring of the profession.

I am confident that there are colleagues with a sense of social
responsibility to take the appropriate steps as a matter of urgency to remove
the impediments so that it may soon become a representative body respected by
the vast majority of the people in South Africa.

The first democratic election in South Africa is about to take place.
Thousands of women and men of integrity will be required to assist so that it
may be conducted in a free and fair manner. The skills of lawyers are needed for
the smooth running of an election. When the appropriate structure makes a call
for your help, I am sure that many of you will answer it.

There can be no justice without a strong independent judiciary. The judiciary
can do little without the support of a strong legal profession. A profession
which identifies itself with the needs and aspirations of all the people in
South Africa, is likely to prosper. With much pleasure I declare the conference
open and wish you all well. May your deliberations bear fruit for all of us.

Thank you.